Defendant agrees to Proposition 65 settlement with "opt-in" provisions
July 2005
A glass and ceramicware distributor has agreed to a tentative settlement with a private plaintiff regarding California Proposition 65 allegations related to lead exposure and the non-food contact and lip/rim surfaces of glass and ceramicware. This tentative settlement includes restrictions on the use of both lead and cadmium bearing colors and the outside non-lip/rim surface of glass and ceramic tableware as well as for glass and ceramic ware that is not for use with food or beverages. The tentative settlement includes provisions allowing other parties to "opt-in" to the settlement by agreeing to the terms of the settlement and paying fees consisting of civil penalties, plaintiff's attorneys' fees and settlement related costs. The tentative settlement has not yet been approved by the court.
In contrast to the 1993 Proposition 65 settlements between the State of California and various defendants that established a uniform Proposition 65 warning threshold for food contact surfaces of glass and ceramicware, all Proposition 65 settlements regarding alleged lead exposure from the lip and rim area of glass and ceramic drinkware and the outside surfaces of glass and ceramicware have been negotiated by private plaintiffs and individual defendants. As a result, there are multiple settlements with multiple Proposition 65 warning thresholds, and these settlements do not bind any other company or individual other than the plaintiff and defendants who are party to each agreement.
In addition to monetary penalties and attorneys' fees, the defendant and plaintiff in the most recent settlement agreed to "reformulation" requirements that are described in broad, general terms here. The settlement includes a provision for warnings as well as a provision whereby the defendant agrees to "reformulate" at least 80 percent of covered ware sold after December 31, 2006 while undertaking all commercially reasonable efforts to sell 100 percent "reformulated" products after that date.
This new tentative settlement defines both glass and ceramic ware used for food or beverages as "reformulated" using either a NIOSH 9100 wipe test with a result of no greater than 1 microgram/wipe for lead and no greater than 8 micrograms/wipe for cadmium for ware not decorated in the lip/rim area; or decoration of ware using materials that contain no more than 0.06% lead or 0.48% cadmium by weight. To comply with this settlement, decorating materials used in the lip/rim area must contain no more than 0.02% lead and 0.08% cadmium by weight. There are separate provisions that both define and establish limits for "children's products."
In addition to the thresholds above, ceramicware can also be defined as "reformulated" using a Total Acetic-Acid Immersion Test with maximum leaching levels for lead of 0.99 ppm and 7.92 ppm for cadmium after correcting for internal volume. Also for ceramicware, a result of 0.5 Micrograms/ml. or less for lead and 4.0 Micrograms/ml. or less for cadmium using an ASTM C927 lip and rim test can be used to establish "reformulation."
As an alternative standard for both glass and ceramic ware that is not for food/beverage use, "reformulated" ware under this settlement can be defined as ware that achieves a result of less than 4 micrograms/wipe for lead and 32 micrograms/wipe for cadmium using a NIOSH 9100 wipe test applied to all decorated surfaces of the ware.
A large number of similar Proposition 65 allegations remain to be either settled or litigated. Although there is no official state warning threshold for non-food contact surfaces of glass and ceramicware, Proposition 65 warnings are an option for companies to establish a defense against allegations that ware exposes consumers in California to lead or cadmium.
SGCDpro members can contact Andy Bopp, 703-838-2810, with any questions or for a copy of this latest tentative settlement.